Last Friday, February 22, was the first major deadline for legislation to stay under consideration in the Washington State Legislature this session. Bills had to pass out of policy committees by 5 p.m. (except for bills in the House fiscal committees and Senate Ways & Means and Transportation committees where the deadline is March 1).

The following bills are still alive following last Friday’s deadline. Some have been modified, while some remain in their original form. The next important date for legislation is March 13, 2013, the last day for bills to be considered in their house of origin (full legislative calendar here).

SHB 1198: Training of Public Officials and Public Record Officers
This bill would require the Attorney General to develop and implement training programs for the Public Records Act and Open Public Meetings Act and requires members of governing bodies and elected officials (within 90 days of taking oath) and public records officers (at regular intervals) to complete the training courses.

SHB 1037: Cost Recovery Mechanism for Public Records Requests
This bill would authorize an agency to charge a fee to recover the cost of furnishing a public record, including an electronic record, where the request is for a commercial purpose and not otherwise exempted. However, an agency would be prohibited from assessing the fee if the requestor is a member of news media, a nonprofit organization, an educational institution, or certain other persons and entities entitled to obtain the requested information or exempted by the bill.

SHB 1128: Injunctions and Time Limitations on Public Records Requests
This bill would authorize an agency to seek an injunction against public records requests if certain conditions are met. These conditions include harassing or retaliatory requests, requests that create an undue burden, safety threats arising from requests, or requests that would assist criminal activity. An agency would also be able to limit the number of hours it devotes to responding to public records requests, if the agency makes certain documents publicly available and meets other conditions.

SHB 1418/HB 1763: Hours of Availability for Smaller Local Agencies
No action was taken on HB 1763. However, SHB 1418 would allow public agencies that do not maintain office hours for a minimum of 30 hours per week to post directions about how to make public records requests. This bill would also establish the date of receipt of a public records request as the date of such smaller agency’s next regularly scheduled meeting and requires the agency to respond to a request at the next regularly scheduled meeting.

SB 5171/ HB 1299/ HB 1298: Sunshine Committee Recommendations
No action was taken on HB 1299. However, SB 5171 and HB 1298 would add language to the Public Records Act clarifying the exemption for sexual assault victim information and exempting information contained in a local or regionally maintained gang database. SB 5171 also repeals the exemption for data on closed medical malpractice claims that may reveal the identity of a claimant, health care provider, health care facility, insuring entity, or self-insurer.

This bill would implement certain recommendations of the Sunshine Committee including clarifications on the personal information exemption and public access to applications for some executive positions.

The following bills failed to make the cutoff and are considered “dead.” However, a bill may be resurrected if it finds its way onto another bill with a broad enough title (although unlikely).

HB 1714: Recordings of Executive Sessions
This bill would have authorized governing bodies to record closed executive session meetings and exempted the recordings from disclosure under the Public Records Act. A court would be authorized, upon finding that a public agency intentionally violated the Open Public Meetings Act, to order recording of closed executive sessions for two years.

SB 5436/HB 1449: Specific Prosecution and Defense Documents
These bills would have provided an exemption to the Public Records Act for victim impact statements and other documents and materials provided by defendants or their attorneys during communications regarding plea agreements and sentencing recommendations.

California may become the first state requiring government agencies to deliver electronically searchable materials in response to public records requests, according to the Center for Investigative Reporting. The current draft of the bill mandates disclosures in "open format" whenever available, meaning "the data or the text in the document is machine readable and can be searched, indexed, organized, categorized, and is otherwise automatically processable."

The State Senate passed SB 1002 by a 35-0 vote back in May; the Assembly Appropriations Committee takes up the bill tomorrow.

The Washington State Senate has passed Substitute Senate Bill 5553, which requires that most public agencies owning and maintaining a website post certain information, including agendas, legislation and minutes.

SSB 5553 adds a new section to chapter 42.30 RCW, the Open Public Meetings Act. The text of SSB 5553 is available here.

While the goal of SSB 5553 is admirable, many public agencies have expressed serious concerns, including uncertainty about the finality of legislation, inability to amend legislation at regular meetings and the specter of personal liability for members of governing boards.

The State House of Representatives Committee on State Government and Tribal Affairs has scheduled a public hearing on SSB 5553 for 10:00 a.m. on Thursday, March 24.

For more information about the provisions of SSB 5553 and some of the concerns raised, click here.

The U.S. Supreme Court heard oral argument on April 28, 2010 in the case of Doe v. Reed [Sam Reed, Washington State's Secretary of State]. As we have previously blogged, the case addresses whether public release of referendum petition signatories under Washington’s Public Records Act violates First Amendment rights. The justices sharply questioned the plaintiff's attorney, who sought to prevent release of the names of people who signed a referendum petition to require a public vote to overturn Washington’s “everything but marriage act.” A Seattle Times article on the oral arguments including a public transcript is available here.

Tomorrow (April 28, 2010), the U.S. Supreme Court will hear oral argument in the case of Doe v. Reed – addressing the question of whether the release of the names of referendum petition signatories pursuant to Washington’s Public Records Act violates First Amendment rights.

The case involves the attempt to seek release of the names of people who signed a referendum petition to require a public vote to overturn the legislature’s enactment of Washington’s “everything but marriage act.” The Secretary of State was poised to release the names, when a group named “Protect Marriage Washington” and two individual signatories to the referendum petition (John Doe #1 and #2) sought a preliminary injunction in Federal District Court to stop the release. The District enjoined the release finding that it would impinge on First Amendment rights. The Ninth Circuit heard expedited review of that ruling and reversed the decision on October 15, 2009 – before the election. Doe v. Reed, 586 F.3d 671 (9th Cir. 2009). Four days later, however, the U.S. Supreme Court stayed the Ninth Circuit ruling, reinstated the District Court’s preliminary injunction and accepted review. Doe v. Reed, No. 09-559.

The Washington Attorney General will argue the case tomorrow on behalf of the State’s Secretary of State, and urge the Supreme Court to affirm the Ninth Circuit ruling. The State’s position is that when people sign a referendum petition to substitute their view for that of the Governor and Legislature, they are engaging in a public legislative process and have no expectation of privacy when they sign such a referendum petition.

In order to preserve taxpayer resources the legislature has revised the Public Records Act, Chapter 42.56 RCW, to allow agencies to refer records requesters to documents available on its website. Under current law, an agency that receives a public records request must respond within five days by either (1) providing the requested records, (2) denying the request, or (3) providing the requester with a reasonable time estimate for fulfilling his or her request. Effective June 10, SB 6367 provides agencies with a fourth option. If the record is available on the agency website, then the agency may provide a link to the specific records requested. However, if the requester notifies the agency the agency that he or she cannot access the records via the internet, then the agency must provide copies to the requester or allow the requester to view copies using an agency computer. A copy of the session law can be found here.

The Washington Attorney General has called for legislation to create an administrative board to manage disputes over Public Record Act claims. The legislation is not likely to be considered until 2011. In an op-ed piece in Crosscut, AG Rob McKenna noted during "Sunshine Week" that this would save substantial costs when compared with the current process of litigation.

The First Annual "Open Government Year in Review 2008-2009" is now available for download. The Year in Review collects articles on case developments and other open government issues during the last year. Below is a partial list of articles. Download your copy here.

1. Only assert an exemption if nondisclosure serves the exemption’s public purpose.

2. When possible, redact exempt information rather than withhold an entire document.

3. Never assert an exemption merely to hide mistakes or because of abstract concerns.

Here is what the memo actual states:

First, an agency should not withhold information simply because it may do so legally. I strongly encourage agencies to make discretionary disclosures of information. An agency should not withhold records merely because it can demonstrate, as a technical matter, that the records fall within the scope of a FOIA exemption.

Second, whenever an agency determines that it cannot make full disclosure of a requested record, it must consider whether it can make partial disclosure. Agencies should always be mindful that the FOIA requires them to take reasonable steps to segregate and release nonexempt information. Even if some parts of a record must be withheld, other parts either may not be covered by a statutory exemption, or may be covered only in a technical sense unrelated to the actual impact of disclosure.

At the same time, the disclosure obligation under the FOIA is not absolute. The Act provides exemptions to protect, for example, national security, personal privacy, privileged records, and law enforcement interests. But as the President stated in his memorandum, "The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears."

ORIGINAL POST

One way to tell a good public records law from a bad law is that a good law starts with a presumption that all records are open and then defines exceptions. A bad law will presume the opposite and instead define what records have to be disclosed.

Washington law has always included the presumption of disclosure. Here is a story about South Dakota, which just amended its public records law to include the presumption of disclosure.

RCW 42.56.550(1) provides "The burden of proof shall be on the agency to establish that refusal to permit public inspection and copying is in accordance with a statute that exempts or prohibits disclosure in whole or in part of specific information or records."

RCW 42.56.030 then heightens the burden an agency will have to meet before it can withhold a record by providing that the Act "shall be liberally construed and its exemptions narrowly construed" to promote the Act's stated purpose of allowing the public to stay informed about government.

The result of these two provisions is that an agency must disclose any public record, unless it can prove that under a narrow interpretation of a statutory exemption, the record is exempt from disclosure.

Here's a good editorial from the Longview Daily News. Thanks to the Og-Blog for pointing it out.

Original Post 5/15

As noted in this article from the Spokesman Review, the Sunshine Committee voted on Tuesday, May 12 to delay any vote on the Public Records Act "exemption" that makes most records of state legislators exempt from the PRA. The article quotes Ramsey Ramerman, the editor of this blog and member of the Sunshine Committee.

The vote was influenced by several factors, including that only 8 of the 13 members were present; and, a concern that some legislative records may have constitutional protections. The matter will be on the Committee's July agenda.

Few open government bills are still alive in the 2009 legislative session. There are three bills left that we are tracking: two make changes to the Public Records Act and and one modifies the open-meetings provision in the Washington Administrative Procedures Act. The next cut-off date is Friday, April 17, when all bills have to be approved by the opposite house.

SB 5295. Unanimous Sunshine Committee recommendations

The substitute bill has been voted out of the Senate and has made it out of committee in the House, but with an amendment. Its fate is not certain.

The Sunshine Committee’s recommendations were broken into two bills, one with the unanimous recommendations and one with the non-unanimous recommendations. The former contained the non-controversial recommendations and the latter contained the controversial recommendations. Only the non-controversial, unanimous recommendations made it out of committee. Its most substantive changes affect the following exemptions:

This bill was signed into law March 20, 2009, and took affect upon signing. It allows a municipality to file a lawsuit to enjoin prisoners from making public records requests. The municipality must show the prisoner is using public records requests to harass others.

HB 1552. Additional requirements for open meetings for state agencies

The substitute version HB 1552 amends the Administrative Procedures Act, not the OPMA. Although it no longer directly affects local governments, it will benefit them by making state agency rule-making procedures more open. The substitute bill has passed the house and the senate, but with an amendment. The amendment clarifies the bill and should be approved in conference.

The views expressed are solely those of the author and do not necessarily represent the views of Foster Pepper PLLC or anyone else. If you disagree or have any comments or suggestions, we encourage your response.

In North Carolina, as in many states, attorney-fee awards to requesters who are forced to file a lawsuit to obtain records are discretionary. New legislation, however, would make the award of attorney fees mandatory, except when the agency relies on legal advice to justify its decision to withhold the records. The same legislation would require mandatory mediation prior to a lawsuit.

Washington's Public Records Act already mandates a penalty that includes attorney fees and a daily award. RCW 42.56.550(4). But there is no exception for reliance on legal advice -- or reliance on a prior court order. As a result, governments are required to pay penalties from their public funds even when those governments act in good faith reliance on legal advice or on a court order.

For example, in West v. Thurston County, 144 Wn. App. 573, 183 P.3d 346 (2008), the County relied on a prior court order in another case providing that the same attorney-fee bills were work product when it told a requester those bills were exempt as work product pursuant to RCW 42.56.290. After the lawsuit was filed, however, the Legislature amended the Public Records Act to clarify that attorney-fee bills were in fact subject to disclosure. RCW 42.56.904. As a result, the Court of Appeals ruled that the County had erred in withholding those records, and remanded for penalties – penalties that will be paid by the taxpayers of Thurston County.

As noted by Brad Shannon in this Olympian article the Sunshine Committee took testimony on a proposal by Committee chair and elected Seattle City Attorney Tom Carr to remove the "exemption" that makes many legislative records exempt from disclosure. The Committee hopes to vote on a proposal at the next meeting. See the post below for more on the exemption. The article quotes Foster Pepper Public Disclosure Team chair Ramsey Ramerman, who is also a member of the Sunshine Committee.

As noted by the Seattle Times, SSB 5130 -- the prisoner injunction bill -- is now law. It passed the Legislature and was signed by Governor Gregoire Friday, the last day of Sunshine Week. Because the law contains an "emergency" clause, it became effective immediately upon being signed.

Update 2

As hinted at by Greg Overstreet over at Og-Blog, the Olympian's position in Friday's editorial in support of the prisoner access bill is different from the Olympian's position in an editorial this summer. In that earlier editorial, the Olympian opposed the Attorney General's efforts to deny prisoner access to the PRA. But last summer, the the Attorney General was arguing for a complete bar on access for prisoners, while SSB 5130 only allows jurisdictions to deny access if they first prove the prisoner is abusing the PRA. In short, the issues are different and the Olympian's current position reflects a more balanced approach to the issue.

Here's an AP article on the bill that again highlights the challenges the Department of Corrections faces because of Parmelee's abuse..

Updated 1

Here is the February 27 editorial from the Olympian supporting the prisoner access bill.

It's unusual for a newspaper's editorial board to support legislation limiting access to public records. But we find ourself in that position on Senate Bill 5130 and House Bill 1181.

Original Post

As noted in these two articles from the Seattle Times and the Seattle Weekly, pending legislation - SSB 5130 - that would allow courts to bar prisoners from making public records requests is making its way through the House and Senate in Olympia. The bill, which seems to have momentum, would only apply to prisoners who are using the Public Records Act to harass public employees.

Prisoners may have many legitimate reasons to seek public records, and the legislation is not aimed at barring legitimate requests. But some prisoners, most notoriously Allan Parmelee — doing 17 years for firebombing two attorneys’ cars – have developed a cottage industry of making requests in hopes of tripping up agencies and intimidating public employees. Here’s an ABA article describing his exploits and abuse of the PRA. A Google search for "Parmelee" and "public records" will provide many more details.

Taxpayers have spent well over $100,000 to subsidize Parmelee’s public records business so Parmelee can intimidate and harass. This type of abuse in no way typifies your average user of the Public Records Act, but it is not unique. Abusive requests hurt transparency by diverting resources. Toby Nixon, the President of the Coalition for Open Government, notes another risk to transparency, arguing:

"If we don't give the DOC and possibly other agencies the ability to deal with Allan Parmelee, it ends up poisoning the situation for everyone else," Nixon said.

Transparency is not served by the abuse of the PRA. But as drafted, the PRA can easily be abused, particularly if someone is interested in harassing a government agency or public employees. The prisoner-injunction legislation is narrowly tailored to address one of the abuses without limiting transparency under the PRA.

This recent Olympia editorial highlights the fact that Legislators’ emails are not subject to the Public Records Act.

But there is no simple “legislative exemption” in the PRA. Instead, you have to look at two statutes.

It starts with the definition of “public record” in RCW 42.56.010(2). That definition provides that “public records means legislative records as defined in RCW 40.14.100.”

The definition of “legislative record” in RCW 40.14.100 then expressly excludes “reports or correspondence made or received by or in any way under the personal control of the individual members of the legislature.” In other words, records held by individual legislators, including their emails, are not “legislative records” and thus not “public records.”

The New Mexico legislature is considering a bill that would subject the legislature to New Mexico's open meetings law. In Washington state, the Legislature has exempted itself from the Open Public Meetings Act and the Public Records Act. NPR's Austin Jenkins recently wrote an article about his difficulties obtaining legislative records from the Washington State Legislature.

The CIA has admitted destroying 92 interrogation videos after an ACLU Freedom of Information Act lawsuit forced the CIA to account for the tapes. In 2007, the Washington Supreme Court has ruled that surveillance videos are public records that may be subject to disclosure. See Lindeman v. Kelso School District, 162 Wn.2d 196 (2007).

Legislation with the Sunshine Committee's unanimous recommendations, SSB 5295 , was voted out of committee. Its sibling bill with the non-unanimous recommendations, SB 5294, (both sponsored by committee member Senator Adam Kline) did not move from committee.

The Sunshine Committee itself is facing possible extinction. SSB 5994 would eliminate the Committee in June 2010, while SSB 5588 would suspend the committee until 2011. Another bill that would have immediately terminated the committee, SB 5119, is not moving forward.

For over a century, Foster Pepper PLLC has advised Washington local governments on the Federal and State constitutions and the laws affecting government organization and operation. Washington has a long tradition regarding open government. Washington is one of the first...More...

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